Melissa Murray is the JLo of Law

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A critical question that I ask myself over and over again is, you know, can you put Humpty Dumpty back together again?

We are breaking a lot of things and mistakes are being made.

And I don't know if they can be fixed easily.

It will likely take 20 years to undo what we've seen done in the space of six months.

Thank you everyone for joining us for the Best People podcast.

This week you're in for a treat because our guest this week is someone who I will admit to being intimidated by.

She's a genius.

She knows everything about everything.

She seems to know everyone from her different twists and turns professionally.

She hosts her own very, very successful podcast called Strict Scrutiny.

When she talks, Jon Stewart doesn't breathe because everything she says is so profound.

This is the best people podcast and this is Melissa Murray.

Thank you so much for doing this.

Thank you for having me.

And that is the most generous introduction.

I want you to tell my teenagers all of this because because

they don't think I'm the best people.

But this is why you're so magical to me.

All of that is how I, I mean, being at MSNBC, we get to talk to some really smart, really insightful.

really amazing people and broadcasters, which you are all those things.

But when you do a long shift, which you just did with me, a day long shift to shoot a promo, that's when you get to know your colleagues at a more personal level.

And we both sat down.

I think it's not insulting to describe both of us with sort of low-tech IQ,

but we were, we were, we were plugging in mics and ordering our sons, our kids lunch from DoorDash and Instacart, and the dogs were barking.

And it's that side of you that I was, it's like that section in People Magazine, Stars, they're just like you.

Oh, that's us.

That's you.

Stars.

They're just like us.

Sorry.

Yes.

They are.

So I was so heartened when you sat on that set to learn that your kids sometimes find you mildly annoying as mine does.

And that you have like a real mom life as well.

So thank you for doing this.

I'm super happy to do this.

Tell me about your pop culture genius, which seems to rival your legal acumen.

I love pop culture.

I really, really do.

So I think you know this.

Like my parents were Jamaican immigrants.

And there was a period in time when I actually went back to Jamaica and went to school for about a year and a half.

And so I came back from Jamaica with this very thick Jamaican accent.

So, you know, imagine being in a Florida elementary school saying, wa guan man, you know,

like it's horrible.

Not a way to become a popular kid in a third grade in Port St.

Lucie, Florida.

And so I watched a ton of television to lose my accent.

Like I literally just spent hours and hours after school watching old school MTV, watching sitcoms, trying to shed this accent.

And I think that's where my love of pop culture comes from.

Like, I watched entertainment tonight, all of those shows that were sort of precursors of Access Hollywood.

I would just watch them for hours while doing my homework or doing whatever, all in this effort to lose my Jamaican accent so I would not be teased mercilessly on the playground.

You really become fluent in whatever you're consuming.

Well, I became very fluent in MTV of a certain era.

The whole head fake, I think, think,

is that

all of this genius that you've amassed through your talent and through your career isn't affecting everyone.

And I wonder, I mean, I think one of the things that you've done is make this conversations about the Supreme Court accessible.

And maybe if that had happened 20 years ago, people would vote, like the choices made about who gets put on the Supreme Court.

Yeah.

We wouldn't be where we are.

But I wonder if you can sort of lay over the fact that the Supreme Court is like a central political issue now in a way that it's never been.

So I think it's always been a central political issue, to your point.

I think it's now sort of becoming much more a part of the discourse because we're actually seeing in real time the ramifications of the court's work with the overruling of Roe,

these efforts to limit and restrict the scope of voting rights.

The court's presence is thick in a way that it was, I think, more subrosa during, certainly during during my childhood.

But the court has always been a major player.

And that's the premise from which we started the podcast: that people really needed to talk about the court in the same way they talked about Congress and the same way they talked about the president and to follow it.

But it's really hard to follow the court if you're not trained as a lawyer because they write in a vernacular that is very difficult to follow unless you have prior training.

And so we viewed our role as podcasters as translating

for the masses, if you will, what the court was doing and making it accessible to people who had no legal training.

And this was really important to me because I remember starting law school and no one in my family had ever been a lawyer.

And I found myself in this classroom and the professor said something about race judicata, which is a really important concept in civil procedure.

But I thought she said Ray Judicata.

So I turned to my classmate, who happened to be the son of the president of Yale, and I said, who is Ray?

Where did he come from?

And I'm like flipping through the book, where is Ray?

And he very kindly explained, it's not a person, it's a concept.

It's race judicata.

But I never forgot how disorienting that moment was and how dumb I felt.

And

that it was an honest mistake.

I just didn't catch what she was saying.

And, you know, the first day of law school, who would understand the concept of race judicata?

No one should.

And so I wanted to start every podcast with that premise in mind.

Like we have to explain.

And indeed, I start every class just making clear that we can't assume that everyone is on the same page.

Everyone has to get to the same page eventually, but we can't assume that they start there.

Do you think we're getting closer to a point where people feel more invested in the debates, the legal debates?

I feel like they shape everything about our politics, but I'm still not sure that they drive people's passions.

So I think one of the things about the court is that they're so sequestered from public life.

And they're not necessarily personalities in the way that Ted Cruz is a personality.

So it's hard to sort of track and follow them.

But the work that they're doing is worth following and following closely.

And, you know, one of the things that we do on the podcast is we read everything.

So you don't have to.

And we can sort of pull together what the whole landscape looks like.

Whereas I think a lot of times on mainstream media, including MSNBC, we focus on these isolated cases.

And those are important in the moment.

But the really scary picture comes into focus when you start putting all of those siloed events together and you're like, oh, wow, this is where we're going.

And so that's one of the things that we're trying to do.

It's not just that they overruled Roe versus Wade.

It's not just that they are hollowing out the Voting Rights Act.

It's not just that they are essentially enabling a president who is exercising the most muscular vision of executive power that we've ever seen.

They're doing it all at the same time and for the purpose of advancing an agenda that heretofore we've never really seen in American life.

Do you have a theory on why?

I do.

So.

One of the things that's so interesting about this court is, you know, they do actually speak off the record.

Like Justice Alito goes to these conferences in foreign cities like Rome and he gives these talks.

And he gave a really interesting talk a few years ago in Rome for, I think it was an event sponsored by some center at Notre Dame University, where he really kind of railed against what I think modern conservatism would call the woke agenda.

And if you think about what the woke agenda is, as I understood him talking about it, it was kind of like modernity was the woke agenda, like a modern society, an inclusive, multiracial, multi-faith society in which women, people of color are all participating as equal citizens.

And this is, I think, a very big change from what came before.

And what he was railing against is really this idea that society had moved ahead and left traditionalists, whether it's religious traditionalists, gender traditionalists, marriage traditionalists, in its wake.

That's what he's yearning for.

And that's what they're trying to move back to.

And one of the things that's actually really interesting about it is

in getting to that modernity, that multi-faith, multi-ethnic, multi-racial democracy that we now inhabit, the Supreme Court was a major player.

The Warren Court of the 1950s and 1960s was absolutely imperative in shaping the society we have now.

And a lot of what we're seeing from this court really is a backlash to what the Warren Court did.

You know, upholding integration, enforcing voting rights, and upholding laws that affirm the vote for people of color.

That's what they're railing against.

And the interesting thing to me is that they're actually using the language of civil rights to effectively roll back the civil rights movement.

So when they speak now of a woke mob, they're arguing that this woke mob is a majority that is persecuting a minority group.

And the minority is actually the Christian evangelicals, the Catholics, the men who have been left behind by these social and legal movements that have pushed us forward toward a more integrated society.

So, there's a kind of weird head flip that's happening where the folks that we in the past would have understood as composing the majority are now being viewed, at least through the conservative lens, as the real minorities who are beleaguered and besieged and who need the court's protection more so than the women and the gays and the people of color who from 1954 to around,

I guess, 2000 were the ones that the court often stepped in to protect.

I mean, what's so crazy about that?

So, Alito is George W.

Bush's like distant second choice after Harriet Myers doesn't work out.

Yeah.

I was there.

I remember.

I did not work with Mr.

Alito.

I did work with Harriet Myers.

It's an extraordinary chapter.

But I wonder how much of that you think is a...

is a view, like an ideology, and how much of it is that Alito has a chip on his shoulder and is a bitter guy?

Two things can be true.

So there's that.

George W.

Bush is really interesting because I think we think of him as conservative, but he's not conservative in the way we understand conservatism today.

And Harriet Myers is a perfect example of that.

Like he nominated her to fill Sandra Day O'Connor's seat when O'Connor stepped down in 2005 to take care of her husband.

And she was not well known in Washington.

You know, he thought it'd it'd be a good idea to have a woman replace another woman.

Weird idea.

And she was there and he trusted her and he knew her.

She was like his personal like counsel.

And she just wasn't known by the conservative legal movement, the mainstays in Washington, D.C.

And they went after her and they won.

I mean, they literally took her down.

They assailed her credentials.

She had not gone to Harvard.

She had not gone to Yale.

I mean, this is so funny now when you think about it in the context of what we're doing with universities and the way we talk about elitism.

But she didn't have elite credentials.

She went to SMU.

She was a Texas lawyer and they hated her for it.

And basically she got the message.

You know, she was very astute, withdrew her name.

And Samuel Alito, someone who had gone to Princeton and Yale Law School and was deeply embedded in the conservative legal movement, got the nod.

And this was someone who had been on the third circuit, the intermediate appellate court that deals with Pennsylvania, New Jersey, those sort of mid-Atlantic states.

He had been on that court when a challenge to a Pennsylvania abortion law had come through.

What would become the Planned Parenthood versus Casey case that the Supreme Court took up in 1992, where they reaffirmed Roe versus Wade.

But when it was at the Third Circuit, Alito was a vote to just kick it out.

Like he wanted to overrule Roe.

He wanted to uphold the Pennsylvania abortion law, all of it.

And he especially wanted to do it on the grounds that women should not be able to have, married women should not be able to have abortions without first seeking their husbands' consents.

This is one of the provisions that he upheld.

And it just sailed through very few questions about it.

I think it all sort of speaks to a kind of interest in traditionalism, like for whatever reason.

Like he talks about this in his speeches, like, you know, what's wrong with the way things were?

What's wrong with religion being sort of a centerpiece of civic society?

In fact, we've lost something now that we are more secular in our outlooks.

And I don't know that he's necessarily the most ideological of the justices.

I actually think the person who is most clearly ideologically pure in where they're going is either Justice Barrett or Justice Thomas.

But I do think he is really outcome determinative.

And the outcome is whatever a traditionalist would want.

You testified against Brett Kavanaugh, but importantly,

you warned very clearly and very bluntly about his views on abortion.

Judge Kavanaugh voted to block a young immigrant woman from receiving abortion care and insisted that she remain pregnant against her wishes, weeks after she had made her decision and after she had completed all of the state-imposed requirements.

Despite his claims during these confirmation hearings that he was respecting Supreme Court precedent on minors and abortion, in fact, his dissent shows the opposite.

To be clear, Roe v.

Wade is not a decision invented by activist judges.

It is part of a century's worth of jurisprudence that protects an entire constellation of rights, rights relating to family, marriage, parenthood, contraception, and personal autonomy in intimate life.

A vote against Roe is whether to overrule it as a formal matter or gut it through instrumental cuts, puts all of those rights in jeopardy.

And make no mistake about it, a vote for Judge Kavanaugh is a vote against Roe.

So I should first say, when I testified in 2018, I'd actually met Brett Kavanaugh.

I'd had lunch with Brett Kavanaugh.

And so I was on this podium, I guess, with all of these speakers, including someone who had been a professor of mine when I had been in law school and people who had clerked for Judge Kavanaugh, Ted Olson, who became a friend,

was also there, you know, vouching for Brett Kavanaugh.

And they all said to a person, like, this is a really nice guy.

He's a really nice guy.

And that checked out.

I'd had lunch with him.

He was lovely.

He really was, you know, nice, personable, whatever.

But it kind of didn't matter that he was nice.

And I was sitting there listening to all of these people sing his praises and vouch for him.

And I'm like, and they all were just like, he's a nice guy.

And I'm like, who cares if he's a nice guy?

Like everyone's rights are on the line.

Like, yeah, he's a nice guy.

I'd have lunch with with him again.

That doesn't mean I want him on the Supreme Court because here's what's at stake and here's what he said.

And the record is really clear.

And I was trying to reach the people like Susan Collins and Lisa Murkowski, whose votes were really going to be pivotal.

Women who, I think, cared about reproductive rights or at least maintaining the status quo.

And to be clear, the status quo in 2018 wasn't like, you know, abortion for everyone.

It was very difficult to get an abortion.

it just existed as a constitutional right and it was very clear to me that if he were on the court he would be a very reliable vote to overrule roe and so i said that and

people said that i was being hyperbolic um that i was crazy all of this and again i come back to believe black women because i was right and and i take no pleasure in being right this is not like having a fight with my husband where i'm like i am right like i was right.

And it's been terrible for so many women who

have to deal with a world in which this critical aspect of health care is absolutely unavailable.

And, you know, we can politicize this all we want, but the bottom line is you have a miscarriage, you need an abortion.

If you want to have kids again, if you want to be able to recover and have a successful subsequent pregnancy, you need to be able to have an abortion.

And right now, that is absolutely,

it's just, it's so difficult to get the clearance that you need in order to get the health care that you need because of what the court has done.

I mean, I had, um, I had kids late.

I did IVF.

All sorts of things go wrong in the early

months.

And so I'm, I'm acutely aware of all those, all those risks.

I've had a miscarriage.

And like, I mean, so many women, we don't talk about it, but they say that one in three women have miscarriages.

I mean, think about that.

Like, this could pop up in your life.

Like, you know, whether you're seeking an abortion or you just have to have one, this is real life.

So, how did the side that was for women not dying while pregnant lose?

You know, one, I think

it wasn't as obvious.

I mean, this goes back to my point about we don't talk about miscarriage at all.

I think if we had more of a robust discussion about what the risks of carrying a pregnancy to term really are,

how

frequently people suffer pregnancy loss.

We might have been on a different footing.

I'm not simply talking about women's choice, although that is vitally important and women's autonomy, but there are actually just real consequences here in terms of women's health and what you need in exigent circumstances.

And because there's been such a culture of shame and silence around pregnancy loss, around how you get pregnant.

Like I think it's only recently that we really talked frankly about how many people require assisted reproductive technology in order to start their families.

Because we don't have those kinds of conversations, because we assume everyone is having children, quote unquote, naturally, and all pregnancies end well, we just missed an essential aspect of this debate that I think would have swayed a lot of people or at least underscored the idea that a right to this health care was absolutely essential, certainly in these exigent circumstances, but just generally as a question of human dignity.

Imagine Imagine like literally being on death's door and being told like you've got to wait until Ted Cruz says it's okay.

Right.

Or until you're septic.

I mean, sepsis is fatal.

And that is one of the medical benchmarks you have to reach before you can get health care.

I mean, I led with conversations about abortion and brave women like Amanda Zarowski, who almost died.

She became septic before she got healthcare more days than I didn't ahead of the November elections.

And those conversations have largely receded.

I mean,

where are we going to be as a country and as women in four years?

So these are important questions.

I mean,

I think part of the difficulties of this moment is that there's just so much in the zone.

Like they have literally flooded the zone.

And there are so many assaults on institutions that we thought were sacrosanct that it's hard to kind of triage and figure out what to address first.

I mean, it's like all systems are failing.

And so I think think it's a question of like break class first or, you know, like maybe we focus on the democracy enhancing institutions, because if we have a viable democracy, we can maybe address some of these other questions.

And we saw that in the last election, you know, in the absence of a constitutional right to abortion and kicking all of this to the states, you see people in different states, including red states, taking affirmative steps to use direct democracy where it is available to secure reproductive rights for themselves.

And to be clear, it's not a panacea.

Direct democracy mechanisms don't exist in every jurisdiction.

But where they did exist, even in places like Missouri, people were like, yeah, I want to be able to have an abortion if I need one.

And I don't want my legislature or my governor telling me that I can't do that.

And we know that it works because we saw immediately all of these conservative elements trying to shut down direct democracy by making it harder for the people to make their voices heard.

In Ohio and measures passed in Kansas.

Right.

We're going to take a quick break right here.

We'll have much, much more with NYU law professor and my MSMBC colleague and friend, Melissa Murray, on the other side.

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when you talk about covering this moment as a triage exercise i mean that's exactly what we endeavor to do and and i'm not always crystal clear on what that means i mean what what institution do you grab you know as as as the fire engulfs the house what are you grabbing on your way out what do you what are you grabbing of our democracy and has it already burned

so i think a critical question that i ask myself over and over again is, you know, can you put Humpty Dumpty back together again?

We are breaking a lot of things.

Not we personally, but like the country, things are being broken and mistakes are being made.

And I don't know if they can be fixed easily.

It will likely take 20 years to undo what we've seen done in the space of six months.

But

to me,

the institutions, like making sure that due process exists, making sure that people understand what due process is.

I mean, there's so many times when we talk about due process and the rendition of these Venezuelans to El Salvador without due process.

And, you know, people in the comments are like, you know, due process is only for citizens.

Not quite, right?

I mean, like, so there is also a basic education that needs to happen that hasn't been happening.

And, you know, in the media, you kind of have to fill in those gaps.

Like, okay, yes, non-citizens don't have all all of the same rights as citizens, but they're not completely devoid of rights.

And in fact, they may actually have rights of due process that we must respect.

And if we don't respect it for them, it means it's much easier not to respect those rights for the rest of us.

And we're on a slippery slope.

And getting people to understand that, I think, has been really complicated.

You know, one of the things that I have been beating my chest about since the last election is how few people in this country really understand just basic civics, like who does what in a democracy.

I mean, if you go online, like there are all these people who think the president can do everything.

It's like, no.

Like it's the whole reason why.

I mean,

including Speaker Johnson.

Yeah.

I mean, that's the problem, right?

Like, like part of the problem.

I mean, I think people think that presidents can set tariffs and can cancel congressionally approved spending and can kill departments because the Republicans let him.

And they just don't know.

I mean, even figuring out the basic lines of who's responsible for what, most Americans don't know that.

And so that's not surprising to me.

I mean, this is the generation, I think, that grew up post no child left behind, where we really started divesting ourselves of sort of things that were luxuries, like PE and music and civics.

And now we're really, I think, paying the consequences of those divestments.

And they think the president can do anything.

And Speaker Johnson thinks the president can do everything.

And I'm going to tell you my little Speaker Johnson story.

I testified, I testified before a House subcommittee on the Constitution and Civil Rights.

This is probably in 2018, 2019 or something.

And I testified with Busy Phillips and some other, like a really amazing doctor from Alabama, Yashika Robinson and some other folks.

And, you know, afterwards, Speaker Johnson, who he was fine.

He was perfectly respectful and it went well, whatever.

Afterwards, he comes down from the dais and starts shaking everyone's hand.

And he gets to me, he's like, wow, you really know your stuff.

And you're so articulate.

And I was like, I'm a law professor.

I would hope so.

And so I was like, no one's told you that you shouldn't say that, but you shouldn't say that.

What's so bad is that even when they're trying to be good, they're so bad.

I mean, how is that mistake still being made?

And let me ask you about your comment about Black women.

I mean, I think that over the last 20 years, Black women are the most informed voters in our country, full stop.

That's it.

That's where we are.

And Black women are the voters who understand the tie between

democracy ending and electing Republicans.

I mean, Black women are the voters who

they lifted Joe Biden, I think, as a failing.

I think he'd lost like three or four primaries.

And Black women understood that Joe Biden could talk to the whole country, could save the country from the,

I mean, Black women are just a bulwark of democracy, but the most informed voters.

What is your theory on why that is?

And how do we spread that around?

So I think one of the reasons for it is that Black women

have a lot to lose.

I mean, it's just that clear.

I mean, as women, as people of color, When democracy slides, you feel it.

And you feel it on multiple fronts, not just as people of color, but as people of color who are also women and

people who

may

be the most acute victims of the gender gap in terms of wages.

I mean, like you feel that.

Like, so if someone's running on a platform of like tariffs for everyone, you recognize immediately, okay, that's going to impact my bottom line.

And my bottom line is already smaller than other people's because there's this persistent wage gap like for gender.

And then it's even more profound for women of color and for black women.

So, I mean, I think when you think about all of the ways in which you have these different axes of identity that are like shaping your existence, like you understand

how much a single thing can impact you in and your family in really profound ways.

Black women are often the matriarchs of their family, not just for their children, but often for their children's children.

So there is sort of a generational sense of responsibility that I think can be

weighing in a lot of ways.

And so it's not that Black women aren't idealistic.

It's not that black women don't have aspirations for a better kind of politics, better candidates.

They're just really, really pragmatic, right?

You know, after the Joe Biden debate where we were all talking about like, oh my God, what was that?

What's going to happen in real time?

When we talked to Black women, they're like, yeah, it was the worst debate I ever saw.

I'm like, okay, are you still riding with Biden?

Yep, sure am.

Why?

Like, it was a terrible debate because I know what the other guy's going to do.

And I know what the other guy is going to mean for me and my family.

And they were just unequivocal about it.

Terrible debate performance.

I'm with him.

And then when Biden withdrew and Kamala Harris stepped up, they were like, okay.

And to be really clear, we thought that there would be this amazing affinity with Kamala Harris.

We raised it right after the debate.

We asked this group of women in Bluebell, Pennsylvania, you know, if they overlooked Vice President Harris, if they selected a new nominee to run in Biden's place, would you be angry?

Would you leave the Democratic Party?

And they're like, we love Kamala.

She's been a trailblazer, a role model, but this is go time.

And we're not going to withdraw from this moment because of some sense of peak.

Like we are, we would be mad, we would remember, but we would vote and we'd vote for whoever that random person that they picked in her stead.

And when she was the nominee, they came out for her.

They supported her.

I mean, that win with Black Women call where all of that money was raised, like that was, I think, about her, but also about it's go time.

This is our last best chance.

I feel like part of the reason she's on the sidelines now is because the whole framing of what went wrong is about her failures.

And I just, I don't think that's very useful.

And so I wonder what went right.

So I think she was really great at connecting with people.

Like when you saw her out on the campaign trail, it really was joyful warrior.

I mean, she was dancing.

She was out.

She made it look fun.

And it hadn't looked fun for a really long time.

Like, to be really honest, it had not looked like fun.

I was at the convention.

The convention was fun.

People were excited and energized about her.

You know, I think that there are

porters in the Democratic Party that really are pushing for a politics of purity.

They want a kind of idealistic candidate.

And I understand the impulse for that.

But again, I feel like I'm just a very pragmatic person and

I want democracy before I want perfection.

And I really believe like you cannot let the great be the enemy of the good.

And I think she just

is, I think,

the victim.

I use that word advisedly of a culture in which We don't necessarily assume that certain people are going to be authority figures.

I mean, full stop.

Like, you really have to.

Is that about gender or race or all of it?

Or both.

I mean, like, I'll just speak from my own experience.

Black women are a minority, a very clear minority in legal academia, and even more so at the quote-unquote elite schools.

So I've almost always been

a first,

like one of the first in the places where I've worked.

And in many places where I've gone into classrooms, I'm the first woman of color that my students have ever had as an instructor in like their entire history of schooling, elementary school, middle school, high school, college, like they've never had someone who looks like me at the front of the classroom.

That's incredible.

It's not uncommon.

Wow.

It's not uncommon.

And certainly not uncommon in higher education.

Although, I think conservatives would like you you to think like there's nothing but black women running colleges right now.

Trust me, it's not the case.

And I think

when there's such

a lack of representation, it's hard to kind of imagine, like, what does it look like to have someone be that authority figure for you?

I mean, you know, there were a couple of times, certainly when I was younger, where students were, wait a minute.

I got to listen to you.

And I'm like, yep, you got to listen to me.

And like, I'm the authority figure in the situation.

So there is kind of a gap, I think, that you have to bridge.

And the way that you bridge it is just performing, overperforming over time.

And she didn't have that luxury.

Do you feel

that that's the standard you're held to, performing and overperforming?

I mean, is that yours?

Yes.

Yes.

What is that like?

I mean, it's, you know, it is what it is.

You know, I know that I don't have the luxury of going off half copped.

Like I really think about and prepare, maybe over-prepare.

Certainly in the beginning of my career,

I over prepared.

You know, the model for tenure in the academy, at least the legal academy, is your scholarship, your teaching, and then your service.

And when I started my career at Berkeley, I knew I was going to have to be like the Jennifer Lopez of law teaching.

Like I was going to have to be a triple threat, like great teacher, great scholar, and a generous and dedicated institutional servant.

And it almost wore me down.

I mean, like, I did so much administrative work at Berkeley at one point.

I became the interim dean of the law school at Berkeley because, you know, I'll step up.

I'll do it.

I'll do it.

Yeah.

And, you know, I think that's, that's how you amass the kind of institutional capital so that you are seen as an authority figure.

But boy, does it take a toll on you.

I was pregnant with my daughter daughter right at the beginning of my career.

And I just remember thinking like, she's such a good baby.

I'm here on this maternity leave and I've got to do work because I've got to get tenure.

I've got to write this article.

And

I regret that.

I regret kind of missing the best parts of her babyhood or not being fully present for the best parts of her babyhood because I was just really worried about being.

understood as a really great and dedicated scholar who was, you know, racking up these accomplishments so that I would get tenure.

And, you know, I eventually got tenure and, you know, I came home and was like, told my husband, you may impregnate me again.

Like, and we had our cliched post-tenure baby.

But that was the moment where I thought I would enjoy his babyhood.

And then he turned out to be incredibly colicky.

And it was hard and like not nearly as much fun.

And I go back to work.

I mean, so, you know, those are like, it's, it's, it takes a toll.

This sense that you have to be, you do have to be better.

I mean, this is the thing thing I think is just like the whole DEI thing is so maddening to me when they talk about like, you know, Joe Biden said he was going to pick a black woman for the Supreme Court, which meant he couldn't think about anyone.

It's like, was anyone looking for like the last 150 years where we never even thought about a bigger pool where it was always going to be a white guy who was picked?

And like, so this one time, and the person who gets picked is a double Harvard graduate who's been a judge at two different levels of the federal judiciary and a member of the the sentencing commission and a public defender.

And you're talking about her credentials.

I mean, like that, like, there it is right there.

You do have to be twice as good.

What does your brain do when someone says, oh, but you have it all, you know, you're married.

No one has said that to me.

No one has said that.

I mean, why does he say that?

Well, I mean, because it's all you know, so I'm not going to ask you how, but what do you hear?

I know how, like, like

how I've been, how have I been married successfully for this long and with kids and with the career and with the you know successful with everything you touch turns to gold how

none of our kids did travel sports that was the secret oh i didn't know that no one told me that that's that's where that's the that's where you fall down the travel sports will kill you oh i'm screwed i mean that's all we do it's really really hard i i think one of the things that has been so striking to me is that my husband who has his own big job

we've really had to renegotiate just sort of the gender scripts in our household.

Like the idea that my husband does as much as he does, I think really perplexes his mother.

Like this is not how her household ran.

And I think the willingness to

embrace setting your own agenda, writing new scripts for yourself and your partner has really been the success.

And like, I give all of the credit to my husband because I don't think either of us were raised in this way.

Like, my parents had a very traditional marriage.

My father was the breadwinner.

He was in the lead.

And I think it was the same for my husband.

I think we are trying to be more egalitarian about this.

And it doesn't always work out to be equal, but I think we really try.

And I think that's been huge to model for our children, but it's not what we knew.

So we've had to relearn things.

How much more do you feel like you're climbing, climbing?

I mean, do you ever see a time when you rest, when you exhale?

I just got back from vacation and I did exhale on vacation.

I did.

I did.

We went to Dubrovnik and Rome and it was, it was amazing.

You know, just like sitting and just exhaling and, you know, being with your family.

And it's great.

And honestly,

I wish I did that more often.

I wish I just like made time to sit and read, you know, read crap books, you know, know, not just tabloids, but like actually wrong books and

not Supreme Court opinions.

Like that was really lovely.

And I'm glad that I did it.

But I think if you're a person who's ambitious or you're a person who thinks there's something in the world to be solved, it's really hard to dial it down and sit it out.

Like I think you're always wondering about what could have happened, what could have been.

And I also think

there's something weird about not being part of the action in that way, not being able to have a say, like if you're opinionated and you want to have your voice heard, like I think that can be really hard.

And so

for me not to be sort of moving and striving like would be for me to be a different person, I think.

Yeah, I think there's something about this moment, too, that makes the work the outlet, right?

Like the work isn't the thing that you decompress from.

The work is the way you

restart what's been right.

And it's how you grieve what has been lost in terms of freedoms and it's how you enjoy what we still have in terms i mean to have this conversation and with all of our criticisms of everything that's happening i mean someone that is doing that with such

seeming to me a mind to history is is justice soda mayor well first of all the decision to read her dissents from the bench yeah what is that about in your view because you know her you clerked for her So it's unusual for a justice to read a dissent from the bench.

They typically do it when they feel especially exercised about the outcome in a case and they feel especially

invested in what they've written in the dissent.

And I think the most recent dissent that Justice Sotomayor read from the bench, which was in the birthright citizenship case, which is really the nationwide injunction case, she read, I think, almost in full, but I think she is doing that.

Because she is engaged in what I would call demos prudence, not just jurisprudence.

And demos prudence is about

not just talking to your colleagues, that's jurisprudence, not just talking to other courts, that's jurisprudence, but talking to the people outside of the court.

That's demos prudence, really trying to make salient for them what the issues are.

She's done it before in oral argument.

In the oral argument in Dobbs, the case that overruled Roe, you know, she asked that very provocative question: like, will this institution be able to withstand the stench of the public knowing that this is just political, that we weren't going to overrule Roe until Amy Coney Barrett showed up.

Like, I mean, that was basically the subtext.

And it was a crie de corps to the public.

It wasn't for her colleagues.

She'd given up on them.

It was for everyone else.

And I think with the birthright citizenship case.

The argument here is

that the president is violating an established, not just one, but by my count, four established Supreme Court presidents.

When she read that dissent from the bench, she wanted us to understand, like, this seems like a wonky anodyne issue about whether or not district courts can issue these universal injunctions.

Guess what?

This is our last line of defense against a president that is blowing through every barrier that the Constitution erects.

And what are we going to do about it?

Like, you are, we are kneecapping the courts, and we're the only thing left.

Congress is on the bench.

We are the only things left.

We'll be right back with much more of my conversation with Melissa Murray on the other side.

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Another instance where she seemed to be speaking to,

this is all my ambient noise now.

That's my dog.

Melissa, my dog is answering your dog about 30 minutes delayed.

Well, did you like, did you just hear Cole?

Cole's like, yes, I completely agree.

He always wants to get in.

Sometimes he comes on Ari's show and sort of sits in the background and tries to get in the shot.

He's very funny.

Mine are so bad.

Mine used to come down to the basement studio during COVID when there was thunder.

And so I always knew what the weather was in the basement.

But this is

about the food orders and the front door.

I want to play Justice Sotomayor's dissent from immunity, because

I think it was really the moment that I realized how screwed we are as a country, that it was as bad as I thought it was.

Today's decision to grant former presidents criminal immunity reshapes the institution of the presidency.

It makes a mockery of the principle, foundation to our constitution and system of government, that no man is above the law.

Never in the history of our republic has a a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.

Moving forward, however, all former presidents will be clothed in such immunity.

If the occupant of that office misuses official power for personal gain, The criminal law that the rest of us must abide will

not provide a backstop.

with fear for our democracy i along with justices cagan and jackston dissent

just talk us through what you what you felt when you heard that she's right i mean with fear for our democracy i dissent um we all should be dissenting with fear for our democracy i mean i think that decision the immunity decision was the arbinger of everything that has followed um you know the way that the court, I mean, we've forgotten about this because like everything just feels like time is accelerated, but we forgot about the fact that the Supreme Court dug their heels in and waited until the very last moment to decide this question, preventing the election interference trial from happening, and then wrote a decision that essentially hamstrung all of the other efforts to hold.

the president accountable or at least to surface questions of accountability to the public.

They were instrumental in that.

And it's almost like we've forgotten it.

And then they wrote this decision, which has essentially emboldened this president.

And now they are writing new decisions,

actually not writing new decisions in some cases, just like announcing that they're going to allow this president to continue doing what he's doing, even though litigation to determine the permissibility of those actions is actively ongoing.

If it turns out it's wrong, we'll fix it later.

I mean, it's just bonkers.

And I think she has constantly said that, like, this isn't normal.

What they're doing, what my colleagues are doing isn't normal.

And what this administration is doing, none of it is normal.

And I think she's speaking truth to power.

And I think it's hard for her to do that because, like, one of the things I think is really interesting about Justice Sotomayor is that she very much believes in being friends with her colleagues, even when she doesn't believe, you know, believe what they believe.

She wants to be a good colleague, a collegial colleague.

And I really do think this moment strains the bounds of collegiality.

I mean, there's so many times when, you know, we ask these justices, like, you know, are you friends with your colleagues?

Like, you know, what about Justice Scalia and Justice Ginsburg being friends?

And part of me is like, why the F do I care if they're friends?

I don't actually care if they're friends, if the court isn't standing up for the Constitution.

Like, it doesn't matter to me.

Like, you know, they're getting beers.

Like, we destroyed the Constitution.

Now we're getting a beer together because, you know, the lion and the lamb lamb can lay down together it doesn't matter and so I think she's kind of at the point where I want to be collegial but there are bigger things there are bigger values at stake do you think she

feels even more than what she says yes in her dissent yes I mean because to be a part of the institution

and to be in the minority and to be held to all these standards that you're talking about where collegiality is is noted and seemingly reprimanded by the super majority, the conservatives.

What do you think that's like for her and the other liberal justices personally?

So I think she has a very different view than, say, a Justice Jackson, right?

So she came onto the court, Justice Sotomayor, in 2009 and was a five to four bear conservative majority.

And there was always the prospect that there would be more retirement.

So I think she joined the court with the assumption that maybe it'll be some tough sledding for a while, but it won't be forever.

And And I think in 2016, when Justice Scalia unexpectedly passed away, that they really saw, okay,

this could be the moment where we have a 6-3 liberal supermajority.

And to be clear, it wasn't going to be a really aggressive, progressive agenda, but I think, you know, they were going to hopefully shore up some protections for certain things.

But I don't think it's, it was nearly.

I don't think what they envisioned was nearly as robust as what the conservative supermajority has envisioned and indeed what they have done.

I think for Justice Jackson, it's a completely different scenario joining the court, understanding there is a six to three conservative supermajority.

You aren't changing that and you're going to be in the wilderness for a long time.

And I think you can see a real difference in the way that they are writing opinions.

I think Justice Sotomayor is still trying to be collegials, you know, still trying to play the game.

So, you know, I think Justice Jackson has a completely different mindset.

I mean, she came onto the court when it's a six to three conservative supermajority.

I also think the fact that she is a DC

native, if you will, a denizen of D.C.

when she came to the court, she didn't need to make friends.

She had friends, right?

So, I mean, I think there's just a completely different posture to the court as an environment than what Justice Sonomayura came in where she was coming from New York.

She didn't really know DC very well.

And collegiality has always mattered to her.

I think Justice Jackson sees a very long trajectory in which she's clawing her way out of this minority and trying to shore up things in the face of a tally that doesn't work for her in a lot of ways.

And it's just really different.

Right.

Right.

When people ask you sort of where will we be, not just with the court, but in our politics at the end of the Trump second term, where does your head go?

I think I always like, what prompts the question,

where will we be?

I think the question is prompted by this profound sense of we've never been in any place like this before.

And I think you have to acknowledge how unprecedented this moment feels for so many people.

It just feels profoundly broken.

And whenever I come on your show, I'm always one of like, the court helped with this.

And it's true, the court did help with this.

Blessing partisan gerrymandering, saying that there's no role for the federal courts to play in policing partisan gerrymandering has emboldened state legislatures to continue to do it.

And we're seeing the effects of this right now in Texas.

So Texas has decided that outside of a census year, they're just going to redraw their district maps so that Donald Trump can get an additional five seats and maybe the Republicans won't lose the House.

I mean, in fact, they definitely won't lose the House if

it happens.

Yeah, they're doing this to rig the midterms.

And

the court has assisted with this because there's no role for federal courts to play in this process.

And it's all at the state level.

I mean, and I said in 2019 when the court issued that decision in Russia versus Common Cause, telling the states that they're the ones to police gerrymandering is literally like asking a burglar to police the burglary.

Like they're the ones doing it.

Like they have no incentives to fix this and they're not.

And it's Texas will just be the first domino to fall.

Like if this succeeds, we're going to see it in every other red state and some of the purple states.

It's going to be a profound race to the bottom.

And it's going to be terrible for democracy because gerrymandering at bottom is a distortion of the people's voices.

Like it's, this is how you don't get heard.

And the Supreme Court's going to assist with that because the case that they were supposed to decide this term, Louisiana versus Cal A, which is about section two of the Voting Rights Act, and whether you can consider race in redrawing district maps in order to accommodate minority voters and ensure that their voices are heard.

The court, I think, is likely to determine that considering race in the context of the Voting Rights Act, a law that was drafted in 1965 to address disparities, racial disparities in voting, is unconstitutional.

I'm 100% sure the court is going to do that.

And it's not just going to be gerrymandering on, it's going to be gerrymandering on top of this.

landscape where the Voting Rights Act is literally going to be a nullity and you can't combat it anymore.

You can't combat these efforts to suppress the votes votes of various groups that have been underrepresented.

So all of this is happening and there is no end in sight.

And it's not normal.

I think people asking that question is because it's not normal.

And I don't have a great answer.

I don't know where we're going to be in 20 years.

I mean, I honestly don't know if we're going to have midterm elections.

Like, I don't

think it's a four.

I don't think it's a foregone conclusion.

I mean, all you got to do is come up with some national emergency, send in the National Guard, suspend the midterms.

Like

if we are heading in that direction, and there's plenty of evidence that we are, what is the political answer then?

I mean, what is the political response if that's the legal landscape?

So if the landscape is distorted, you do have to overperform.

And that was the issue, I think, in the last election where turnout was more muted for a variety of different reasons.

In a situation where the landscape is artificially distorted, you must overperform.

You've got to turn out more and more voters in order to make up for the distortion.

And I think Democrats have to figure out how to do that, how to energize voters, how to get people who haven't voted to show up and vote.

I mean, you were around for Barack Obama's campaign.

Like that was so electrifying in a lot of ways.

And I almost wonder if it didn't sort of spoil people because it was so electrifying.

So many people who had never participated in politics came out and participated in that election.

And then, you know, I think Barack Obama found out.

I think the people found out that as president, you're sort of bounded by a structure.

And, you know, the president's not a king or it's not supposed to be.

You can't do everything that you want.

And, you know, there is a kind of limit to what you might hope for, what you might aspire to.

And I think people got jaded because it didn't end in the way they thought it would they thought it was going to be amazing on all these different levels i think for black people especially like you know black president is going to be great for us and

better but maybe not as good as a lot of people wanted and

i think those kinds of effects dull the interest in politics and just make it harder to get people energized i i think some of this too is really just local politics.

You know, I live in New York City and I've said this over and over again.

People have talked about New York's drift to the right, especially in some of these outer boroughs.

I think people want to see that progressive governance works in a way that makes their lives better in a material and tangible way.

And with that in mind, I think the person who manages to free the shampoo from the CVS is going to be the mayor of New York City.

I mean, truly, like if you can figure out how to get CVS to stop locking up everything, so when you go in to buy a bottle of shampoo, it doesn't take 30 minutes, that person's going to be the mayor of New York City.

Well, if you need allergy medicine, razors, and fancy shampoo, you've got to have a free hour.

That's just why I used to live above a drugstore and order all those things from Amazon because it took me.

It takes forever.

It takes forever.

And it's never the same person who can unlock all three.

Free the shampoo.

You're the best.

Thank you so much for doing this.

Thank you for having me.

I loved it.

Thank you.

Thank you so much for listening to The Best People.

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